Dershowitz: Acting AG ‘Made a Political Decision, Rather Than a Legal One’ on Trump EO, ‘Serious Mistake’

On Monday’s broadcast of CNN’s “OutFront,” Harvard Law Professor Emeritus Alan Dershowitz reacted to Acting Attorney General Sally Yates’ announcement that the DOJ will not present arguments in defense of President Trump’s immigration order by saying Yates made a “serious mistake” and has “made a political decision, rather than a legal one.”

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Dershowitz said, “Yates is a terrific public servant, but I think she’s made a serious mistake here. This is a holdover heroism. It’s so easy to be a heroine when you’re not appointed by this president and when you’re on the other side. She made a serious mistake. I think what she should have done is done a nuanced analysis of what parts of the order are constitutional, what parts are in violation of the statute, what parts are perfectly lawful. There’s an enormous distinction between green card holders on the one hand, people who are in the country and have to be thrown out on the second hand, and people who are simply applying to get visas. There is also a distinction between what’s constitutional, what’s statutorily prohibited, what’s bad policy. This is very bad policy, but what’s lawful. And I think by lumping all of them together, she has made a political decision, rather than a legal one.”

He added, “I think it’s — some of it’s constitutional, some of it’s not constitutional. For example, there is a statute that limits the president’s power, and says that visas may not be denied on the basis of religion. Is that statute constitutional, or is it a claim on presidential authority? These are very complicated legal issues, and people shouldn’t jump into them. You know, we have a hobby in this country, if you don’t like something, you assume it’s unconstitutional.”

Dershowitz stated Trump should “just ignore” Yates and ask the court to appoint a special defense attorney to defend the order, because the president “has a right to have his actions defended. If I’m a judge, I’m going to say some of the statute’s unconstitutional, as it applies to green card holders, as it applies maybe to people who are in the country, but maybe not so much as it applies to people who are seeking visas, but may be in violation of a statute. These are hard questions, and we shouldn’t be treating them with a blunderbuss. We should be treating them with a scalpel.”

He concluded, “You respond to Twitter with nuance, and that’s why I think Sally Yates made a mistake. She played into his hands, instead of responding in an intelligent, sophisticated, calibrated way.”